Complainant

Respondent

Anonymised Parties

A Care Worker

A Treatment Centre

Representatives

Tom O’Donnell B.L., instructed by Boland & Co. Solicitors

Mary Fay B.L., instructed by Pembroke Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00027538-001

04/04/2019

The Complainant claims that her contract of employment was terminated by letter dated 12 October 2018 on the basis that she was accused of conducting one to one counselling with a client on a night shift for over twenty minutes, defied direction from management, inappropriately self-disclosed personal information to a minor and failed to accurately give information from the night shift to the day shift at handover. The Complainant said that the allegations are untrue and ill founded.

The Complainant claims that she was suspended with pay from 9 August to 3 September 2018 and following this was subsequently dismissed on 11 October 2018. She said that her appeal was refused by letter dated 23 October 2018.

The Complainant claims that the she was told that the termination was based on a review of the case from both the investigation meeting and disciplinary meeting. The Complainant said that no disciplinary meeting took place and the Respondent acted outside of the terms and conditions of its disciplinary policy and procedure. She said that she has not seen sight of reports, notes or conclusions drawn by the decision makers.

The Complainant said that she has not engaged in gross misconduct as was alleged. The Complainant said that she was singled out for dismissal for unproven facts. The Complainant has said that the Respondent did not adhere to the proper disciplinary process. The investigation was inherently flawed. She said that the Manager was wrongfully responsible for the entire investigation and disciplinary process. She set out the allegations, invited her to the investigation meeting, led the investigation, led the disciplinary meeting and issued the termination letter. The entire process lacked objectivity and independence and thereby lacked fairness throughout.

The Complainant said that she worked on average 37.5 hours per week and earned €574.44 per week at the time of her dismissal. The Complainant said that she commenced alternative employment on 17 December 2018 and claims a loss on income amounting to 9.5 weeks in total.

The Respondent was present at the hearing and said that the Complainant was dismissed from her employment for gross misconduct with effect from 11 October 2018. It claims that she was paid her notice entitlements.

The Respondent decided not to contest the case of unfair dismissal.

The Respondent noted and accepted the submission made by the Complainant in relation to her financial loss from the period of her unemployment from termination date 11 October 2018 until she commenced her new job on 17 December 2018.

The Law

Section 6 of the Unfair Dismissal Act 1977 provides that

(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

[…]

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

[…]

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

I note in the case of Bank of Ireland v Reilly, [2015] IEHC 241 Noonan J. stated that:

“…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned [...]”

First and foremost, the issue in relation to justification of a dismissal needs to be addressed by the Respondent in such cases before the issue of fair procedures is considered and evaluated. It is well established that an employer must be reasonable in regard to how it deals with such cases. The constitutional right to fair procedures and indeed natural justice must be applied in such circumstances and in particular to prevent a dismissal where there has been an alleged breach of fair procedures.

It is clear there is a presumption under the Unfair Dismissal that all dismissals are deemed unfair, except proven otherwise. I note in the within complaint that the Respondent has decided not to contest the case and rebut the claim to unfair dismissal.

Accordingly, in the absence of a rebuttal by the Respondent to the claim of unfair dismissal, I find that the Complainant was employed by the Respondent in the role of Care Worker for over five years and was dismissed by the Respondent.

In the absence of any other evidence on the matter, I find that the Complainant was unfairly dismissed. I deem compensation as the most suitable remedy and that can only be in respect to her financial loss.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.  

I find that the complaint made pursuant to the Unfair Dismissals Act is well-founded and the Respondent shall pay to the Complainant the following redress.

Having considered that the Complainant’s submission on this aspect of her claim I am satisfied that she is entitled to €5,457.18 [five thousand, four hundred and fifty-seven euro and eighteen cents] in redress.

Unfair Dismissals Acts – case not contested – well founded – compensation.